OPINION
Pursuant to rule 50 of the Texas Rules of Appellate Procedure, we withdraw our earlier opinion issued on February 28, 2002, and substitute the following opinion. TEX. R. APP. P. 50.
Appellant was charged by indictment with the offense of possession of more than fifty but less than 200 pounds of marihuana in cause no. 10,887, and possession with the intent to deliver 400 grams or more of cocaine in cause no. 10,888. The cases were consolidated for trial. A jury convicted appellant of each charged offense, and found appellant used or exhibited a deadly weapon in each case. The trial court assessed punishment at twenty years confinement in cause no. 10,887, and thirty-five years confinement and a fine of $5,000 in cause no. 10,888. Appellant raises five points of error. The first and third points contend the evidence is legally insufficient. We agree and reverse.
I. Standard of Appellate Review
In determining whether the evidence is legally sufficient to sustain a conviction, we employ the standard of
Jackson v. Virginia
and ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia,
In possession of controlled substance cases, two evidentiary requirements must be met: first, the State must prove the defendant exercised actual care, control and management over the contraband; and second, that he had knowledge that the substance in his possession was contraband.
King v. State,
Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and that he exercised control over it.
Trams v. State,
The affirmative links doctrine is the appropriate means of applying the
Jackson
rationality standard of review.
Martinets v. State,
[U]nder our law, an accused must not only have exercised actual care, control, or custody of the substance, but must also have been conscious of his connection with it and have known what it was, evidence which affirmatively links him to it suffices for proof that he possessed it knowingly. Under our precedents, it does not really matter whether this evidence is direct or circumstantial. In either case it must establish, to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous. This is the whole of the so-called “affirmative links” rule.
Id. at 747.
Certain nonexclusive factors may be considered when determining whether the evidence is sufficient to affirmatively link the accused with the controlled substance:
1. Whether the contraband was in plain view or recovered from an enclosed place; 2
2. The accused was the owner of the premises or had the right to possess the place where the contraband was found, or the owner or driver of the automobile in which the contraband was found;
3. The accused was found with a large amount of cash;
*713 4. The contraband was conveniently accessible to the accused, or found on the same side of the vehicle as the accused was sitting;
5. The contraband was found in close proximity to the accused;
6. A strong residual odor of the contraband was present;
7. The accused possessed other contraband when arrested;
8. Paraphernalia to use the contraband was in view, or found on the accused;
9. The physical condition of the accused indicated recent consumption of the contraband in question;
10. Conduct by the accused indicated a consciousness of guilt; 3
11. The accused attempted to flee;
12. The accused made furtive gestures; 18. The accused had a special connection to the contraband;
14. The occupants of the premises gave conflicting statements about relevant matters;
15. The accused made incriminating statements connecting himself to the contraband;
16. The quantity of the contraband; and,
17. The accused was observed in a suspicious area under suspicious circumstances.
Carvajal v. State,
The number of the factors is not as important as the logical force the factors have in establishing the elements of the offense.
Jones v. State,
II. Factual Summary.
The evidence viewed in the light most favorable to the prosecution reveals the *714 following. On June 8, 1999, at approximately 8:30 p.m., Texas Department of Public Safety Trooper, Derek Prestridge, was patrolling Interstate 10 eastbound in Chambers County with Trooper Cody Muse. 4 This particular stretch of the interstate consisted of multiple lanes of traffic separated by a cement wall from the multiple lanes of westbound traffic. Prestridge observed a 1990 Chevrolet Lumina four door automobile in the center lane cross the left lane marker. Prestridge activated his emergency lights to stop the vehicle. At that time, Prestridge could see two individuals in the vehicle. As the vehicle pulled over, Prestridge saw the front seat passenger, appellant, apparently “moving around, shuffling inside the car,” and a third individual, Jerome Degree, who had been laying in the back seat “popped up.” Prestridge testified appellant’s movement created the “possibility of weapons in the vehicle and either attempting to hide a weapon or maybe making access to a weapon for their — themselves during the contact.”
The driver, Earl Bellard, immediately exited the vehicle, which Prestridge found uncommon. 5 Prestridge performed the horizontal gaze nystagmus test on Bellard to determine if he was intoxicated. While Prestridge performed the test, Muse checked on the passengers. Prestridge asked Bellard if he had a criminal record; the information Bellard provided conflicted with the information Prestridge received from the dispatcher. 6 Appellant provided information of his criminal record that also conflicted with Prestridge’s information. 7 Prestridge testified that appellant appeared nervous, and while nervousness was normal when being stopped for a traffic violation, appellant appeared more nervous than normal. Appellant was asked to exit the vehicle and when he complied, he backed toward Prestridge as if to be handcuffed. Prestridge found this unusual. Prestridge’s pat-down search of appellant revealed no contraband, paraphernalia or weapons.
Prestridge questioned the three occupants of the vehicle separately about their travels. Prestridge testified appellant was unsure and evasive. On the video, Pres-tridge asked Bellard for permission to search the vehicle. Bellard stated he was not the owner. Prestridge then asked Degree, who was the owner, for permission. Degree consented to the search. Pres-tridge did not seek appellant’s permission to search the vehicle. Upon searching the area underneath the front passenger seat, Prestridge recovered a .357 Smith & Wesson firearm. The weapon was loaded and positioned with the grip toward the front of the vehicle. This discovery caused Prestridge to order the occupants of the vehicle to remove their shoes, which reduced the chance of their flight or resisting arrest. 8 A second gun was subse *715 quently found in the vehicle. 9 Neither weapon was examined for fingerprints.
Prestridge opened the trunk and recognized the odor of marihuana. Prestridge testified the odor was not apparent before the trunk was opened. He discovered seven bundles of marihuana. The vehicle was transported to the highway patrol office where the back seat was removed and Prestridge discovered an- envelope, a box of sandwich baggies, rubber gloves, $1,978 in cash, and a Ritz cracker box which contained the alleged cocaine.
Luggage was found in the back seat and in the trunk. A black duffle bag, identified as belonging to Bellard, was found in the back passenger seat. That bag contained drug paraphernalia in the form of baggies used for weighing and packaging drugs. A blue bag identified as belonging to appellant was also found in the backseat. That bag contained articles of clothing but no drug paraphernalia. Prestridge stated that nothing in appellant’s luggage linked him to the contraband. Prestridge thought it odd to carry luggage in the back seat. In the trunk, Prestridge recovered a neck and back brace; Degree is seen wearing a neck brace on the video, and heard complaining of a back injury. Articles of “Big & Tall” clothing were also found in the trunk and Prestridge testified Degree was larger than appellant. Three pair of tennis shoes were found in the trunk: two pair were size 14 and the third pair was size 15. Prestridge testified Degree wore size 14. A pair of size 11 shoes were found in Bellard’s bag. Degree was searched and $400 was recovered from his person. Appellant was also searched but no money was found on his person.
A DPS chemist testified the marihuana weighed 108.65 pounds. The cocaine weighed 1,220 grams, and was 36% pure. Baytown Police Officer Charles Widner testified the Houston area was considered a hub for drug smuggling and the transportation of drugs in the United States and the North American continent. Wid-ner estimated the marihuana to have a wholesale value of $43,435 and a street value of $150,000. He stated the cocaine had a street value of $300,000. Widner stated it was uncommon for a single person to transport this amount of contraband.
III. Analysis
We will begin our analysis by considering two cases from our sister courts which addressed a similar factual scenario. In
Dixon v. State,
After fisting many of the factors that may be employed to affirmatively fink Dixon to the contraband, the court found Dixon’s extreme nervousness, the conflicting statements as to who they were going to visit, the absence of luggage for a three-day trip, and the fact that the car was borrowed were finks indicating guilt.
Dixon,
In
Moreno v. State,
We will consider the affirmative fink factors enumerated above in fight of this precedent to determine whether the evidence is sufficient to establish appellant’s possession of the marihuana or the cocaine, either as a principal or a party to the charged offenses. 10 Neither the marihuana nor the cocaine was found in plain view. Instead, both were secreted; the marihuana was in the trunk, and the cocaine underneath the back seat of the vehicle. Appellant was a passenger in the vehicle and there is no evidence that he exercised any ownership or control over the vehicle. In fact, the evidence is to the contrary, Bellard was the driver and Degree was the owner of the vehicle who permitted Prestridge to conduct the search. Accordingly, Prestridge did not ask appellant to consent to the search.
*717 The contraband was neither in close proximity to appellant, nor conveniently accessible to him. Instead, the marihuana was in the locked trunk of a vehicle which was neither owned nor driven by appellant, and the cocaine was hidden underneath a seat occupied by Degree. Pres-tridge testified the odor of the marihuana was not detected until he opened the trunk. There is no evidence of appellant being present when the trunk was opened prior to Prestridge’s search. Additionally, the cocaine did not exude an odor. Paraphernalia was discovered in Bellard’s luggage and underneath the back seat. No contraband or paraphernalia was found on appellant or in his luggage. In fact, Pres-tridge admitted that nothing about appellant’s luggage linked him to the contraband.
Appellant was not intoxicated and his physical condition did not indicate recent consumption of either marihuana or cocaine. While Prestridge testified appellant appeared more nervous than normal, his nervousness was certainly much less than that exhibited in either
Dixon
or
Leyva. Dixon,
*718 The vehicle was traveling on an interstate highway at approximately 8:80 p.m. This is neither a suspicious location nor can appellant’s presence in a vehicle on a public thoroughfare be considered a suspicious circumstance.
Admittedly, the quantity of both the marihuana and cocaine was large. Degree, the owner of the vehicle, occupied the seat which concealed the cocaine and almost $2,000 in cash, and had $400 on his person. However, appellant had no money on his person. Prestridge testified the amount of contraband was normally transported by more than one individual. This testimony would tend to link appellant with the contraband if there were only two occupants of the vehicle. However, the presence of Bellard and Degree, one being the driver and the other being the owner of the vehicle, both of whom had personal property connected either with drug paraphernalia or the marihuana, decrease the probative force of this as an affirmative link for appellant. Also Prestridge’s testimony that those who transported large amounts of drugs tended to travel with weapons does not link appellant to the contraband because Prestridge conceded that it was possible for a person sitting in the front passenger seat to not know a firearm was underneath, and there were no fingerprints linking appellant to the firearm.
Additionally, we do not find appellant made a furtive gesture toward the weapon. The whole of Prestridge’s testimony on this is as follows: Appellant “appeared to be moving around, shuffling inside the car,” which created the “possibility of weapons in the vehicle and either attempting to hide a weapon or maybe making access to a weapon for their— themselves during the contact.” Mere movement by an occupant in a vehicle being stopped by a law enforcement officer, not coupled with reliable information nor suspicious circumstances, does
not
give rise to probable cause to search of the vehicle.
Wilson v. State,
Finally, we come to the three pair of tennis shoes in the trunk. While there was evidence that two pair of shoes were size 14, which was the size of shoe worn by Degree, there is no proof of appellant’s shoe size. Without such proof, we will not assume the third pair of shoes belonged to appellant, or much less that appellant placed them there at a time when the marihuana was present. Therefore, there *719 is nothing to show appellant had a special connection to the contraband.
When these factors are viewed in the light most favorable to the prosecution, we hold the evidence is insufficient to establish appellant possessed the contraband alone. Moreover, when the evidence is viewed in that same light, we hold the evidence is insufficient to prove appellant had the intent to promote or assist the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in the commission of the offense. The evidence does not link appellant to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and that he exercised control over it. 13 Accordingly, we sustain the first and third points of error. 14
The judgments of the trial court in cause numbers 10,887 and 10,888 are reversed and a judgment of acquittal entered in each cause. TEX. R. APP. P. 48.2(c);
Burks v. United States,
Notes
.
When the narcotics are secreted, the State must address whether the defendant knew of the existence of the secret place and its contents.
Vargas v. State,
. Excessive nervous behavior and unsettled demeanor may be examples of consciousness of guilt.
Leyva v. State,
. Officer Muse did not testify at appellant’s trial.
. Prestridge video taped the stop of the vehicle and his subsequent interrogation of the driver and passengers. A redacted version of the video was admitted into evidence without objection. The video tape was not transcribed because the trial judge found the words spoken on the video were not capable of transcription and stated "let the video speak for itself.” The tape was made a part of the appellate record and has been reviewed by the court.
. Prestridge did not elaborate on the extent or degree of the conflict with the information received from Bellard.
. Again, Prestridge did not elaborate on the extent or degree of the conflict with the information received from appellant.
. On the video, Prestridge announces that each occupant is under arrest for unlawfully carrying a weapon.
. This weapon was discovered by Robert Hancock, the wrecker driver who towed the vehicle from the highway patrol station to his wrecking yard for storage. The trooper who recovered this weapon stated it was found between the driver's seat and the center console.
. The trial court’s charge to the jury authorized conviction under either theory, and the jury returned a general verdict. Therefore, we must determine if the evidence is sufficient to support a finding of guilt under either theory. If so, the verdict will be upheld.
Rabbani v. State,
. The State contends we "ignore” appellant backing toward Prestridge, but that conduct is duly chronicled in part II,
supra,
of this opinion where the facts are summarized. The State also argues that neither
Dixon
nor
Leyva
involve this exact conduct. While that is true, the State is missing the point. We cite
Dixon, Leyva,
and the cases in footnote 3,
supra,
for the accepted proposition that nervous behavior is a tenuous link. We do note, however, that the cases cited by the State in support of this proposition do not involve the particular conduct the State claims to be probative in the instant case.
Fields v. State,
. The audio portion of the video tape mentioned in footnote 5,
supra,
contains a comment in the patrol car in which one of the defendants says; "I told you when we got on down the road that girl was going to hit me ...” Another defendant responds: "Yeah.” The State argues this is an affirmative link. This argument is faulty in several respects. First, the State admits the voices are not identified. Accordingly, there is no showing that appellant either made or responded to the comment. As noted earlier, mere presence is not sufficient to make one a party to joint possession.
Oaks,
. The State argues that we have not viewed the evidence in the light most favorable to the prosecution, but that is the only light in which the evidence can be viewed because appellant did not offer any contrary evidence. The State further agues that we have ignored the holding in
Brown, supra,
and have "reached for hypotheses other than appellant’s guilt.” Such hyperbole is untrue, and portrays a misunderstanding of what is required of appellate courts when determining whether the evidence is legally sufficient to support a conviction in a possession case. We have not suggested any other hypotheses; we have merely reviewed the evidence in the light most favorable to the prosecution, considering the factors previously catalogued by the Court of Criminal Appeals and our sister courts of appeals which may serve to affirmatively link an accused to contraband. The
Dixon
Court reviewed several of these same factors and came to the conclusion that the factors indicating the defendant "did
not
have control were not only more numerous but more convincing."
Dixon,
. We need not address the remaining three points of error. See TEX. R. APP. P. 47.1.